Consultation agency needed to facilitate B.C. resource projects

Opinion: Treaties take time, but the need to consult on developments is immediate

Consultation and co-operation with First Nations on economic development is vital, especially for major projects like the proposed liquid natural gas terminal in Kitimat.

British Columbia’s newly elected government is promising to grow our economy. Development of a liquid natural gas industry will be a particular focus, but our province’s economic well-being will continue to rely heavily on all our land and resource-based industries. Co-operation among First Nations, industry and government will be essential to success, but currently that engagement is fraught with challenges.

The treaty process under the B.C. Treaty Commission was established to help reconcile crown and aboriginal title in B.C. While some notable successes have been achieved, many First Nations are not actively engaged in that process and it will be many years before we have treaties throughout the province. In the meantime, First Nations, business and government must make decisions in the face of uncertainty.

In the 2004 Haida Nation decision, the Supreme Court of Canada was clear that government must always consider the interests of First Nations when making decisions that may affect their constitutionally protected rights, even during the interim period when those rights are being proved or negotiated by treaty. Each case since the Haida Nation decision adds some more guidance, but specific details remain few.

In sharp contrast to the B.C. Treaty process, current consultations with First Nations are often ad hoc processes that have frequently triggered expensive litigation. Proponents lack certainty on who they should approach and what to expect by way of consultation and accommodation. First Nations often feel bombarded by competing projects and fear their rights may be trampled in the rush to secure project certainty. This situation results in inconsistency, inefficiency, delay, lost opportunities and general discontent for all involved.

The province can enhance the opportunity for success by establishing new institutions to assist with the fulfilment of the Crown’s duty to consult with First Nations. A multi-party consultation agency could serve that role for the benefit of First Nations, industry, government and all British Columbians. Treaties take time, but the need to consult on development projects is immediate.

Turning our attention to this pressing need makes good sense.

For large projects, the Environmental Assessment Office is the main provincial body responsible for ensuring consultation is carried out. Its mandate, however, does not cover the full spectrum of issues and impacts on aboriginal rights. It is also structured to be project specific, thereby failing to fully develop and adopt the potential body of knowledge around consultation practices.

The province should consider a separate multilateral consultation agency with input from all governments — federal, provincial and First Nation – with an initial mandate to facilitate consultation on major projects. The agency could become the centre of expertise and information for consultation and accommodation in British Columbia. It could collaborate with both proponents and First Nations to facilitate the development of positive relationships. In difficult situations, the agency could develop dispute resolution processes, as suggested in Haida Nation, to avoid lengthy court battles.

The benefits of undertaking the Crown’s consultation in an efficient and timely manner are significant and necessary. Considerable work is being done within government to identify aboriginal interests that may be impacted by development. The process of consultation could be improved by co-ordinating such work with earlier input of First Nations and project proponents.

Adequate funding is also key to developing the requisite expertise and trust, but this does not need to come from the province alone. Alberta offers an interesting example through its recently enacted Aboriginal Consultation Levy Act, which imposes a levy on industry proponents. It is also reasonable to expect the federal government to contribute given its economic and legal interest in some of the projects in B.C., and its responsibilities to aboriginal peoples. A consultation agency would gain expertise in assessing strength of claims, evaluating impacts on rights and title, and identifying “best practices” for consultation and accommodation. It would also accumulate a valuable database of information that could be available to all. That knowledge could then inform consultation for smaller projects or more routine government decisions, placing the province in a strong position to uphold the honour of the Crown and respect aboriginal rights across B.C., while pursuing the economic growth that will benefit all British Columbians.

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